I recently received a question from a gentleman named Charlie who asks:
I filed chapter 13 about 2 years ago, now I got hurt on Job and am receiving W.C. In the process W.C. is to build a new house for me. How does chapter 13 come to play?
My husband, Jonathan Ginsberg, has been a bankruptcy lawyer in Atlanta for over 20 years. I asked him to respond to this question. Here is his response:
Charlie, first of all, it is important that both your workers' compensation lawyer and your bankruptcy lawyer know about your accident, the house construction benefit and possible settlement. Assuming that your weekly wage benefit check is less than your regular salary, you need to make arrangements to keep your Chapter 13 plan current. Given your injury, your bankruptcy lawyer may be able to amend your plan so that your payment is reduced to account for your reduced income. Assuming that you foresee a settlement within the next three years, you may be able to make up the difference in a lump sum at settlement.
I have always taken the position that lump sum settlements in workers' compensation cases may be treated as exempt property purusant to Georgia's exemption statute. You should speak to your bankruptcy lawyer about this. This means that you may be able to keep some or all of your settlement even if your plan is paying only a small percentage back to your unsecured creditors. In a similar vein, I would argue that the new house should be considered as exempt because it is necessary for your on-going support and maintenance. Here, too, you need to seek counsel from both your bankruptcy lawyer and your workers' compensation lawyer.
Finally, you need to advise your workers' compensation lawyer to file an entry of appearance in bankruptcy court and to file a motion to approve both any settlement and any attorney's fees claimed. Bankruptcy judges usually do not have any problem with approving either a settlement or a fee contract, but if you don't follow the required procedures, there could be delays.
Filed under Settlements, Stipulated settlements by 
You have been injured on the job and are now receiving Georgia workers' compensation benefits. Who decides which doctor you can see? What if you are not happy with the company doctor? Are there any circumstances when you can choose a doctor of your choice?
In this video, attorney Jodi Ginsberg speaks about the rights of injured workers to receive quality medical care as well as options to change treating physicians in the event that company provided medical care is sub-standard.
Filed under Medical benefits, Understanding the Law by
Our firm's blog and web site makes frequent reference to the Georgia State Board of Workers' Compensation. The State Board functions as the court system for workers' compensation claims in Georgia. The Board is a creation of the state legislature and it uses different forms that what you might see in a Georgia State or Superior Court.
I hope that this blog, along with the Ginsberg Law workers' compensation web site, will be helpful resources for you as you educate yourself about Georgia workers' comp. law. Another very useful site is the web site published by the State Board itself. While some of the material on the State Board's site is geared towards lawyers, insurance companies and employers, there is a great deal of useful information there for injured workers. For example the State Board web site has a very helpful FAQ section written for the benefit of injured workers. Another section is written for employers – as injured worker, however, you can learn from this as well. Another area of the State Board web site that you may want to review is the section that includes the various official forms that employers, insurers and claimant's lawyers must use.
One of the main themes of the State Board site relates to how workers' compensation is different than personal injury law. If you understand, for example, that pain and suffering are not part of a workers' compensation claim, or that an insurance company does not have to settle, you can make better choices in your own case. If you are an injured worker, you obviously have concerns that transcend the organizational structure of the State Board of Workers' Compensation. However, you may find that an understanding of how the Board works can help you maximize your recovery should you have an injury claim.
Filed under Georgia Workers' Compensation, Understanding the Law by
If you are injured on the job and you are a covered worker under the workers' compensation law, your employer is required to provide you with medical care. However, as you may suspect, what you consider as reasonable and necessary care may not be the same thing as what your employer and its insurer want to provide.
The posted panel of physicians is the starting point for your claim for medical treatment. Under Georgia's workers compensation law, employers are required to post a list or "panel" of doctors in a reasonably accessible place for employees to see. A valid panel should have at least 6 indpendent medical providers on it and at least one of these doctors should be an orthopedist.
If your employer has a posted panel, you may select a doctor and schedule an appointment, with the cost borne by the ermployer/insurer. Often, your employer will try to direct you to a particular doctor or clinic with whom the employer has an on-going relationship. Under Georgia law, you as the injured worker have the right to select from any of the doctors on the panel. You can do yourself a real favor by avoiding doctors who may not have your best interest at heart – Ginsberg Law's extensive experience with physicians throughout the State can be a huge benefit to you if you become our client.
If you choose to select a doctor on the panel that is different from the doctor that your supervisor is "suggesting," you would be wise to ask the doctor's office to verify that the workers' compensation insurer has agreed to pay for the appointment. Some employers honestly do not understand that employees have the right to choose a physician, and sometimes employers and insurers will intentionally playing games with the payment of medical providers for unrepresented claimants even if those providers are authorized.
If there is no posted panel of doctors, or if there is a panel that is not accessible, or if you have never been given any explanation of how the panel works, Georgia law can provide you the right to select your own doctor. As you might imagine, employers and their insurers will do everything in their power to retain control of the course of your medical treatment. You may hear things like "that doctor is not authorized," or "that doctor is not on our panel," or "that doctor is not in our network." Be aware that there have been dozens of litigated cases in Georgia relating to the posted panel, and factors that either validate or invalidate the panel. Part of our job as your attorney is to identify whether the posted panel issue is something to pursue or not.
To illustrate the importance of asserting your rights under workers compensation law, I would like to relate to you the story of a recent client of mine who suffered permanent nerve damage in his spine because of delays caused by the insurance company. As any reputable doctor will tell you, time is of the essence if you have a serious injury. If you have a serious injury to your back, neck, arm, knee, foot, head or hand a delay in diagnosis can result in permanent injury and inability to return to work.
Our case involved a situation where a client hired us after enduring almost a year of frustrating delays in medical care. The client had a significant back injury after falling off the back of a truck. He hit the ground and had sharp, shooting pains in his back and radiating down his leg, with numbness in his toes. He was ordered by his employer to see the clinic down the road from his job. For several months, he stayed under the care of this clinic – taking medication and undergoing therapy that did not help, and actually made him worse.
When this injured worker (not yet represented by our firm) asked for a referral to a specialist he was ignored and offered more therapy. The clinic doctors released him to "light duty," which he tried to do with very limited success. Finally, after many months the clinic doctor ordered an MRI scan, which revealed herniated discs at 2 levels impinging on a nerve in the spine.
Again, the injured worker asked for a referral to a spine specialist and after another full month of delay, he finally got the referral. The specialist confirmed the diagnosis of disc and nerve injury and ultimately the injured worker (now our client) underwent a fusion of his spine. Unfortunately, the surgery did not relieve his pain, because our client had incurred permanent nerve damage due to the delay in care.
One of the issues that I sometimes face arises from my client's initial report of his injury. When you are hurt on the job, you can help your case greatly by thoroughly and accurately reporting your injury.
Don't just talk about the one injury that is hurting you right now. Instead, take an "inventory" of every part of your body that was involved. Don't exaggerate, but don't minimize problems either. For example, if you fell off a ladder, you might have immediate back pain. But, you might also have:
- concussion
- headaches from the hard landing or from hitting your head
- neck pain from sudden impact
- foot problems from landing on your foot ackwardly
- knee problems from landing on or twisting your knee
- hand problems from falling hard on your hands
Your employer may send you to a doctor. When you meet with the doctor, you want to begin creating an accurate paper trail. Report each and every body part that is affected, even if the doctor does not seem interested. Most doctors ask you to fill out an intake form – that form will become part of your case record. Use it to identify all problems.
If you fail to list all problems at the outset, the insurance company may use this gap to deny coverage and to limit treatment. If the insurance company identifies your case as a low back/hip case, they may not authorize your doctor to treat your knees or feet. You could literally find yourself being treated for one part of your leg, but not another part because the doctor is specifically not authorized to treat that other part.
It may sound crazy to you that your doctor will only treat part of your problems, but this is a common situation in workers compensation. The insurance companies put very specific limits on what they will pay the doctors to treat.
Now, what happens if you did not give your supervisor or your initial treating doctor an accurate description of your injury? It may not be too late. You may still be able to update your report of your injury and preserve your rights. I would advise you to speak to an attorney before trying to do this on your own.
Here is an example from one of my recent cases that demonstrates the importance of accurately reporting your injury.
My client was a carpenter who was carrying a 2×4 board on his left shoulder. His right hand was in his apron He fell down and landed on his left shoulder, leaving him in severe pain. The employer sent him to a local emergency room where he complained about his left shoulder. An MRI was done, showing a torn left rotator cuff that required surgery.
Following surgery and physical therapy, my client remained in severe pain. At this point, the injured carpenter called me. My first question – are you having headaches? I asked this because I know that headaches are a common symptom of cervical (neck) disc problems. I used the "employee's second opinion" to have my client seen by an orthopedist who specializes in neck injuries. Sure enough, my client had a herniated disc in his cervical spine.
This cervical spine issue necessitated additional surgery and rehabilitation. Because the injury was more severe than originally thought, this case had significantly more settlement value as well. My client did have any medical background and there is no reason for him to know about the anatomy of the neck and shoulder. I do have an understanding of this anatomy because I have represented dozens of claimants with similar issues. This is a case where I was able to use my experience and knowledge for the benefit of my client.
Filed under Back & neck injuries, Georgia Workers' Compensation, Medical benefits, Winning Strategies by
When speaking to prospective clients, I often get the questions "what is my case worth?" and "when will my case settle? I cannot think of any situation where I would be able to answer this question truthfully before I would have an opportunity to dig into the file and read all of the medical records. I think that any lawyer who throws numbers and dates at you is not being straight with you because there are so many factors that influence the timing and settlement value of your case.
This about it this way – if you were to drive your car into a repair garage, would you expect the mechanic to diagnose exactly what is wrong with your car before driving it or opening the hood?
When I open a new file, the medical record often is not very complete. Many times no objective testing – MRI, CT scan, even x-rays – have not been done. Objective testing helps doctors and judges evaulate the severity of your injuries. A herniated disk or a broken bone will be much more compelling evidence than a generalized pain syndrome and thus impact settlement value.
I would also want to know who your authorized treating doctors are. Over the years, I have become very familiar with many of the doctors in North Georgia who handle workers compensation claims. If your treating doctor is very conservative and is likely to return you to work with no restrictions, your settlement value will be affected. If I see an angle to argue for a change in treating physician, your case will be more valuable.
In my experience, claimants sometimes don't realize just how seriously they are hurt. If you are having excruitating pain in your back, you might not think abuot that nagging ache in your heel – but down the road, your heel problem and resulting inability to walk could have a more lasting impact on you. A big part of my job is to ask the right questions based on what I would expect to see given a particular injury. Shoulder pain may mask a neck injury. Knee pain may mask foot problems.
Along these lines, as your case develops I will be thinking about whether you will be able to return to your past work, whether your employer is likely to create a job to accommodate you and whether you will be able to return to a job where you can earn close to what you have earned before.
In my view, the timing of our settlement demand i crucial, and the decision about when to talk settlement will be the result of a lot of discussion between you and me. My job as your counsel is to give you the pros and cons of settlement and to help you make a good decision for yourself and your family.
Filed under Settlements by
What is the biggest trap that you can face in your Georgia workers' compensation case? Without question, issues relating to your return to work after being injured must be handled very carefully.
Let me give you an example. Earlier this month, I received a call from a potential client. This young man – I'll call him "Tom" – had been working with earth moving equipment for a large construction company that was building a dam on a river in north Georgia. Tom and a co-worker were working late – all of the supervisors and most of the co-workers were gone. The co-worker pushed a large boulder towards Tom and when Tom tried to control the boulder, it rolled onto his hand, crushing a finger and badly injuring his hand.
Tom's co-workers took him to the emergency room at a local hospital where his condition was stabalized and a hand surgeon was brought in. Tom underwent surgery that very night to repair his hand. Tom was released to go home late that night with a prescription for strong pain medicine and instructions not to use his hand until further notice.
The next morning, a supervisor from Tom's employer called. Although the accident had literally happened the night before, the supervisor began pressuring Tom to return to work. During that first day after the accident, various supervisors from the employer called and emailed Tom repeatedly to demand that he return to work.
Within a few days, Tom received a letter from the employer's workers' compensation insurer stating that his claim would be accepted and that his TTD (temporary total disability benefits) would be forthcoming. At the same time, during this first week, Tom continued to receive calls from his employer requesting that he report back to work.
Tom does not know much about workers' compensation law, but he sensed that the employer's actions were not in his best interest. He found Ginsberg Law Offices on the Internet and he called our office. When I first spoke with Tom, he advised me that his employer had never posted a panel of physicians, they had not offered him a prescription drug card, nor had anyone from the employer ever explained to him anything at all about how to file a workers' compensation claim or about any of his rights thereunder.
Where is the "return to work trap?"
The trap arises when an employee returns to work. Under the Georgia workers' compensation law, if an injured worker who is receiving his weekly TTD benefits returns to work without a form WC-240, and he cannot perform the assigned job, the TTD benefits stop. If the employer does not volutarily restart them the employee will have to request a hearing (and wait the two to three months for a hearing date) to try and get them restarted.
However, if that same employee returns to work with a WC-240, and cannot perform the assigned job, his TTD benefits will start again immediately.
What is this special form, the WC-240?
A WC-240 is a State Board from that sets out a specific light duty job description. The WC-240 includes the start date for the light duty return to work, specific activity limitations as described by an authorized treating physician, the name and contact information for a supervisor and the light duty rate of pay.
If you return to work with a WC-240 and cannot perform the job duties, you notify the contact supervisor, then you return home knowing that your TTD benefits will start again automatically.
In Tom's case, had he returned to the dam building site without a WC-240 and been unable to resume work in his heavy construction job, there is a good chance that the employer would have cut him off. At that point, Tom would have no job, no income and no workers' compensation benefits.
As you can imagine, Tom's settlement leverage would be very minimal.
I think it is fairly obvious that Tom's employer has taken an aggressive, "in-your-face" approach to Tom's case. Even the insurance company adjustor confided to me that the employer was not acting properly in what amounts to harassment of Tom.
Sometimes employers understand Georgia law fully and they use this "return to work trap" to squeeze injured employees. They know that an injured employee who has no money will be more likely to settle for a miminal lump sum out of desparation.
Other employers are not based in Georgia and they don't know anything about a WC-240, but will take adavantage of the leverage associated with an undocumented return to work.
I think that Tim's case also illustrates why an injured employee needs legal representation.
Finally, you should be aware that the WC-240 was appropriate in this case because Tom had already been receiving TTD benefits. If your employer has controverted the claim and no TTD benefits have commenced, a different strategy might be necessary.
Many of the calls I get from injured workers are triggered by questions about returning to work. If your doctor has suggested that you are ready to return to work – full duty or light duty, or if your employer is pressuring you to return to work, please do not make any decisions without talking to me or to competent legal counsel.
Filed under Georgia Workers' Compensation, Income benefits, Returning to work, Winning Strategies by
